Understanding the Role and Responsibilities of an Executor of Estate in New York

As you prepare your will that details your intentions, it is essential to take time to consider who will be your executor of an estate in New York. The duties of an executor require taking care of many fiduciary tasks and functions to fully satisfy your intentions.

An executor can be any person of legal age able to carry out the required duties. You do not have to name a relative as your executor. You could name a business, your wills and estate lawyer, a business partner, or a friend. Ideally, you want to choose someone you can trust and rely on.

last will and testament with dollar

Duties of an Executor of Estate in New York

The executor you select also needs to understand their role and responsibilities to successfully carry out their duties. In general, they will be tasked with accounting for all of your assets, property, investments, financial accounts, and debts. They will also be responsible for filing your death certificate and will with the probate court in New York, called the New York Surrogate Court.

The probate process is required to ensure the will is legally binding, as well as to address any potential issues where one or more beneficiaries may attempt to contest the will. Most executors do seek assistance from a qualified probate lawyer to ensure all legal obligations are met.

Probating the will is just one duty of an executor. The executor will need to safeguard all assets until such time they are to be liquidated and/or distributed to beneficiaries. If the deceased owned a business, then the executor is required to oversee its operations.

Additionally, they will inventory and appraise all assets to establish their value. Prior to distributing the estate to the beneficiaries, the executor must satisfy all debts claimed by creditors, as well as income and estate taxes.

Furthermore, the executor should take steps to protect the interests of the beneficiaries. This could require keeping accounting records and other financial reports to show that the assets have been protected.

Executors Have to Manage Various Obligations

As you can imagine, the duties of an executor can be rather complex. They have to manage various obligations, depending on the size and complexity of the estate.

For instance, they may need to collect rental income from rental properties. They might be required to make investments to keep assets from depreciating. They could have to take over running a business, as well as related business duties like making operational decisions.

In addition, they have to maintain all physical property in its current condition. This can require performing maintenance and repairs as needed. To better manage these various obligations, executors can seek outside help from accountants, lawyers, maintenance technicians, and other professionals as needed.

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Executors May Have to Deal with Conflicts

Aside from managing the estate of the deceased and carrying out their intentions, many executors have to deal with conflicts from relatives, friends, and beneficiaries who dispute the will or disagree about how assets should be divided.

Understanding the role and responsibilities of an executor of an estate in New York is essential to select the right person. It is highly recommended you inform the person you name as executor so they can also review what duties and responsibilities they will need to perform.

For further assistance in preparing your will and selecting an executor or obtaining help with the probate process in New York, please feel free to contact Joseph A. Ledwidge PC at 718-276-6656 today!

Questions for a Probate Attorney: How Does the New York Probate Process Work?

The New York probate process will vary, depending on whether the deceased had a will or trust or had no such documents expressing their last wishes. After someone dies, their assets, property, and other belongings, which are called their estate, have to be distributed to surviving loved ones, called heirs.

In addition, any outstanding debts must be paid. There are also estate taxes that have to be paid. To accomplish this, the probate process is used in New York through what is called the Surrogate Court. The role the Surrogate Court plays in the probate process will vary, depending on the documentation or lack thereof the deceased had.

Business man pointing the text: What Are The Rules?

Ultimately, their primary role is to oversee the estate and approve distributions to the appropriate parties. Before any distributions can be made to charities and surviving loved ones, the estate must first pay outstanding debts and estates taxes.

If the deceased had a will or trust, then they should have named an estate executor. This person is responsible for performing specific tasks to distribute the estate. They will obtain permissions from the Surrogate Court as needed throughout the probate process.

If the deceased did not have a will or trust or did not name an executor, the Surrogate Court will appoint an estate administrator. The administrator has similar responsibilities as an executor. If the surviving loved ones do not believe the estate is being handled correctly, there are specific legal actions they can take, such as contesting a will or requesting the removal of the executor.

What Steps Are There in New York Probate Process?

In general, there are three basic steps in the New York probate process, as follows:

Step 1: Inventory and Appraise the Estate

The executor will need to review the deceased’s assets. They have to make an inventory of all property. Afterward, they must assign a monetary amount to each item, which could require expert appraisals. The overall objective is to determine how much the estate is worth.

Step 2: Satisfy Outstanding Debts and Pay Taxes

The next step is to pay any outstanding debts the deceased owed. This could include loans, credit cards, and other financial obligations. The executor will also pay estate taxes owed. If there is not sufficient cash to pay all debts and taxes, the executor can liquidate assets to ensure they are paid.

Step 3: Distribute the Remaining Estate to Heirs

If there is a will, then the executor makes distributions based on the last wishes of the deceased. In some cases, where assets had to be liquidated, the heirs may not receive the assets or property promised in the will.

If there is a trust, the probate process will vary slightly, depending on the type of trust the deceased had. If there was no will or trust, then the court-appointed administrator takes care of each of these steps.

senior adults discussing important topic

Please keep in mind, this is just an overview of the process. New York State probate rules, the size of the estate, and other factors that could require additional steps are not covered here. Nor should the information presented here be considered legal advice. This is why it is important to make a list of questions for a probate attorney to get the answers and legal advice you need.

A probate attorney can also help with the execution of a will or trust, as well as provide guidance for the executor during the probate process. For further legal advice and assistance with the New York probate process, please feel free to contact Joseph A. Ledwidge PC at 718-276-6656 today!

What Does Administering a Trust Involve?

Part of estate planning requires you to decide if you want a will, a trust, or both. Some people choose to have a will for specific items and a trust for others. There are benefits of having a trust in place beside or in addition to a will. To help you learn more about administering a trust and what is involved in a trust administration, it is important to know the basics about trusts.

What Is a Trust?

A trust is a legal document that describes various properties, bank accounts, investments, and other such assets owned by a person. This person is called the Settlor when creating a trust. The Settlor designates what property and assets will be included in the trust and transferred to the trust administrator or Trustee.

The job of the Trustee is to administer the trust according to the instructions of the Settlor. The Trustee has specific requirements like ensuring they protect the property and assets of the Settlor until such time they are to be distributed after their death.

Are There Different Types of Trusts?

Financial Advisor Talking To Senior Couple At Home

Two general types of trusts exist in New York. A person can have a testamentary trust or a living trust. With a testamentary trust, the trust does not become active until the Settlor dies. With a living trust, the trust becomes active while they are still alive, once it is executed correctly. Administrating a trust also begins while the person is still alive when they create a living trust.  

In addition, there are two different types of living trusts: Irrevocable and Revocable. An irrevocable living trust is where the trust cannot be changed, amended, terminated, or modified without permission from the named beneficiary. Furthermore, any assets listed in an irrevocable trust are transferred out of the estate.

A revocable trust, on the other hand, retains the assets as part of the Settlor’s estate. This allows the Settlor the option to modify, change, terminate, or amend the trust anytime they desire. While the Settlor is alive, any income or other financial gains continue to be distributed to the Settlor as stipulated in the revocable trust. It is only after their death that the assets and money are distributed to the named beneficiaries.

How Does a Trustee Perform Trust Administration?

A Trustee can have several assigned responsibilities and duties to carry out for the Settlor long before they pass away. One of the most common reasons for family disputes and legal issues is because of improper trust administration by a Trustee.

Administering a trust requires more than just attempting to honor the wishes of the Settlor. A Trustee must also be prepared for:

• Asset Management and Protection
• Investing Trust Resources as Directed
• Trust Investment Management
• Managing Trust Distributions
• Maintaining Accurate Trust Records
• Adhering to the Terms of the Trust
• Maintaining Communications with the Settlor
• Maintaining Communications with Beneficiaries After the Settlor’s Death
• Handling Conflicts Between Beneficiaries
• Knowing When a Trust Has to Go Through the New York Probate Process
• Filing and Paying Any Required Taxes

Trust administration requires selecting the right Trustee. This is why most people retain the services of a New York probate attorney to act as their Trustee rather than a close family friend or relative.

Couple Discussing Paperwork With Financial Consultant

By retaining an attorney for administering a trust, they remain objective and can help alleviate any family disputes or other issues that could arise after your death. Additionally, they can offer sound legal estate, will planning, and trust administration advice to ensure your assets and property are protected and distributed according to your intentions.

For further information about trusts and assistance in creating one, please feel free to contact Joseph A. Ledwidge, P.C. at 718-276-6656 today!

For What Reasons Do I Need a Probate Attorney in New York?

In New York, when a loved one dies, their estate, including all bank accounts, investments, assets, and real estate must go through the New York probate process. This process will occur whether the loved one left a will or died without one.

Sometimes the probate process is still needed if a trust was not properly created. The process can vary and be rather complex depending on several different factors, such as:

• Is the will clearly written with the intentions of the deceased?
• When was the will last updated?
• What is the current marital status of the deceased?
• If there were recent updates, were they made by a person of sound body and mind?

Even when the deceased makes their intentions very clear about their wishes for after their death, it does not always alleviate potential tension and disagreements between surviving family members.

family giving their last goodbyes at the cemetery

To address certain issues and concerns, it is highly recommended to seek assistance and guidance from a qualified probate attorney. Whether you are the executor of the estate or concerned your loved one’s wishes are not being carried out, having an attorney on your side can be beneficial.

Other reasons why you need a probate attorney in New York include:

1. Submitting contracts during probate that are legally binding and valid.

For instance, a parent leaves their vacation home to their four children. Two of the children have no interest in the home, while the other two want to share it equally. A contract would be needed to sell the interest in the vacation home to the children who want to retain the home.

2. Addressing conflict and contesting of the will.

Sometimes surviving family members can contest the will or create conflict between siblings and other relatives. Conflict is especially common in situations where the deceased was married multiple times and had children with each marriage.

Another case where conflict can arise is when someone believes they should be entitled to more than they were left. For instance, the deceased verbally promised them a certain possession or an amount of money. Yet, when the will is reviewed, those details are not documented anywhere.

3. Making the New York probate process easier.

The probate process requires a review of the court to ensure everything is in order and the will is valid. Additionally, the probate process addresses specific issues, such as:

• Assigning an executor if one is not named in the will or trust.
• Ensuring proper appraisal of all assets in the estate.
• Paying any outstanding creditors.
• Collecting on any debts owed to the estate.
• Filing the will or trust with the probate petition with the appropriate court in New York.
• Ensuring assets and wealth are distributed correctly to the right beneficiaries, charities, and legatees.

Furthermore, having an attorney is vital if a loved one did not leave a will or trust or their intentions are not clear. It is equally beneficial to hire a probate attorney in New York when a loved one died without a will or trust to ensure proper distribution of their estate.

4. Providing assistance to create a legally binding and sound will or trust.

Young couple and insurance agent going through paperwork on a meeting

Taking the time to create a will or trust can help avoid conflict, make your intentions clear, and provide detailed instructions on how you want your estate distributed after your death. Obtaining help from a qualified probate lawyer ensures your loved ones will not have to guess what you wanted and can prevent most conflict.

For assistance in creating a will or trust, or representation during the New York probate process, please feel free to contact Joseph A. Ledwidge, P.C. at 718-276-6656 today!

Child Support by Agreement

When a couple with children is in general agreement on custody and child support, the best family law advice may be to document that agreement and ensure it meets the basic requirements to be approved by the child support court. In New York State, there are two ways to complete that process.

We will review both paths to reaching a child support agreement, what guidelines such an agreement should follow, and how to get the help you need to have your agreement approved.

Reaching Your Own Child Support Agreement

Cute little girl with dad leaning over vegetable counter.

When a breakup is civil and both parents are willing to work out all details of their proposed child support plan, this is commonly referred to as “informal negotiations.” They might engage a child support attorney to put their intentions into a legal format and advise them on any changes needed to have it approved by the family court.

Taking this route can keep legal costs to a minimum while protecting the best interests of the children. Sometimes, even with the best of intentions, the parents might become stuck on one or more key points and need more help to reach their goal of a mutual child support agreement.

Engaging Expert Help to Reach a Child Support Agreement

When both parents would like to create an agreement but struggle to do so on their own, they can choose Alternative Dispute Resolution or ADR. This process uses tools such as mediation—where a professional mediator works with the couple to resolve the obstacles, or collaborative law—where their respective lawyers negotiate the key factors together to reach a child support agreement before going to court.

So, even if the parents cannot reach an agreement themselves, they still have an opportunity to have a say in the outcome by resolving their disagreements through the ADR process. A family law consultation is a good way to begin this procedure and find out more about the resolution tools available to you.

What Should a Child Support Agreement Cover?

Woman lifting baby into the air.

Each state has guidelines which cover minimum requirements for child support, as well as requirements to get custody of a child. When crafting your own agreement, it will have to be in line with state law, fully outline the details of payment amounts, frequency, and duration, as well as being a voluntary and informed choice for both parents.

These factors must be true and documented:

• There is an open court case between the two parents.
• Both parents are aware of their child support rights and state guidelines.
• The parents both consider the agreement to be in their children’s best interest.
• Neither party is currently on (or has applied for) public assistance.
• Both parents enter the agreement of their own free will, without being forced or pressured to sign.

Finding Legal Guidance for Child Support by Agreement

Reaching a mutual agreement about child support has the same legal backing as court-ordered child support, once it has been filed and approved. The process for changing the order or for child support enforcement remains the same.

With 32 years of collective experience in Jamaica and Queens NY, the Joseph A. Ledwidge PC law firm knows how to draft agreements that will be approved by the appropriate authorities. When you need a family law attorney who understands your mutual desire to reach your own agreement for the security of your children, call us to get started.

Child Support by Court Order

Because New York family law states that a child should be supported by both parents, child support can be ordered by the court. If your children are going without support from an estranged parent, or if you have received notice of child support claims against you, engaging a child support attorney can provide guidance in navigating this process.

Let’s discuss what a child support order means, how it is created and enforced, and how to resolve obstacles or disagreements during this process.

What Is Child Support by Court order?

mom holding her son

A child support order is the legal means by which a family court judge documents the requirement to pay child support and in what amount. A support order establishes the right of the state to pursue child support enforcement actions if the parties do not abide by the terms of the court order.

What Is Included in a Court Order for Child Support?

Following state guidelines, the court order will outline the details and responsibilities of the parents regarding financial support. These elements will likely be part of a New York State child support order:

• Confirmation of parental status, usually by paternity testing, birth certificate, or voluntary acknowledgment of parenthood
• Identifying the children who require support
• Evaluation of the parents’ ability to pay
• Establishing which parent will pay support to the other
• Outlining the details of payment, including method, amount, and frequency
• Establishing penalties for violation of the support order which may include wage garnishment and additional fines

How Is a Child Support Court Order Established?

There are typically three ways that the state determines child support by court order is necessary. These include:

As Part of a Divorce Proceeding

Along with determining child custody, property division, and responsibility for marital debts, the divorce order will usually establish child support. If there is an existing prenuptial agreement, this will be taken into account, but the court must approve any agreements between the parents.

A prenuptial agreement definition of child support may not meet state minimums, so it must be reviewed during the process. The requirements to get custody of a child are also determined by state guidelines.

By Request of an Unmarried Parent

When the parents were never formally married, the custodial parent may petition for child support by court order. Once parenthood is established, the process moves forward according to state requirements.

When Assistance Services Are Utilized

When a single parent applies for public assistance, the government agency involved may notify the appropriate authorities that child support is not being received. The Child Support Agency may file on behalf of the child.

Resolving Obstacles in Establishing Child Support by Court Order

father teaching his son to ride a bicycle

A New York state law known as the Child Support Standard Act (CSSA) has established a clear formula for child support which will be followed in most cases.1 There are, however, many unique situations that might bring you to a family law attorney:

• If the non-custodial parent resides in another state, the laws of that state may apply in the resulting court order for support.1
• If the proceedings take a long time to complete, the child support order is often backdated to the date of the initial request.
• If the whereabouts of a parent are unknown, child support agencies will provide assistance in locating them.

When You Need Guidance About New York Child Support Orders

Many times, it is helpful to have an experienced child support attorney on your side during this process. Obtaining a fair and equitable support order starts with presenting the request or response in a way the family court will accept.

If you need help navigating the child support process in New York, schedule a consultation with Joseph A. Ledwidge PC. In Jamaica, Queens, and our other locally placed offices, you will find a compassionate advocate to guide you to resolution.

Source:

  1. https://www1.nyc.gov/site/familycourtdivision/child-support/child-support.page

The Pros and Cons of Prenuptial Agreements

Marriage is a declaration of love and commitment to your partner, but it’s also a legal agreement. When you get married, you have certain responsibilities to your spouse.

New York is an “equitable distribution state.” That means marital property must be divided equitably and fairly when a couple divorces—but it doesn’t necessarily mean assets will be split equally.

prenuptial agreement on a table

A prenuptial agreement can help protect your assets after you get married. Read on to learn the pros and cons of prenuptial agreements.

What Is a Prenuptial Agreement?

Also called a prenuptial contract or “prenup,” a prenuptial agreement is a contract between two future spouses. It’s often drawn up by a family law attorney and spells out how property will be divided after a couple divorces or if one spouse dies.

In New York, a prenuptial agreement must be drafted before a couple gets married, and it goes into effect as soon as they marry. The agreement must be in writing and signed by both spouses before a notary public. Oral agreements and unsigned agreements are not legally valid.

Who Should Get a Prenuptial Agreement?

We tend to think of rich people and celebrities getting prenuptial agreements, but people of modest means can benefit from having one.

Even if you don’t consider yourself wealthy, it’s impossible to know how your life might change over the years. A prenuptial agreement can protect any assets you acquire during your marriage if you and your spouse get divorced down the line.

There are other considerations. If you’re a single parent, a prenuptial agreement can help you protect your child’s inheritance or personal savings if you and your future spouse eventually divorce. It can also be helpful if you want to keep certain assets separate, like a family home or business.

If you don’t have a prenuptial agreement, the court gets to decide how to divide property after you die or if you divorce.

hand of a man put on an engagement ring on the finger of the bride

Pros of Prenuptial Agreements

Prenuptial agreements can be customized to your specific needs and situation. They can be beneficial if:

• You have substantial wealth and want to protect it.
• You want to protect the inheritance rights of children and grandchildren from a previous marriage.
• You have a business or professional practice and want to protect it if you divorce.
• Your future spouse has significant debt (a prenuptial agreement can protect you from responsibility for that debt).
• You want to outline the details of decision-making and responsibility sharing before you get married.
• You want to limit how much spousal support you must provide after a divorce.

Cons of Prenuptial Agreements

There are also disadvantages to having a prenuptial agreement:

• Some people find prenuptial agreements distasteful and worry that such an agreement creates a sense of distrust before a marriage even begins.
• If you’re a low- or no-wage earner, a prenuptial agreement might make it difficult to sustain your lifestyle after divorce.
• You might give up your right to inherit your spouse’s estate when they die.
• You might compromise on something in the prenuptial agreement that creates a burden or financial hardship down the line.
• If you contribute to the success and growth of your spouse’s business, you may not be able to claim a share of that increase in value.

In short, a prenuptial agreement has advantages and drawbacks. It can do more than protect assets. It can also protect kids and grandkids from a previous marriage and help outline how decisions are made and each spouse’s responsibilities during marriage.

Prenuptial agreements often have a silver lining: They encourage future spouses to discuss expectations before they get married. This can help prevent disagreements about hot-button issues like finances that often lead to divorce.

Get Professional Help When Drafting a Prenuptial Agreement

Prenuptial agreements aren’t one-size-fits-all. They can and should be customized for your situation. The experienced family law attorneys at Joseph A. Ledwidge P.C. will work with you to draft and review a prenuptial agreement that satisfies the needs and wishes of you and your future spouse.  

Contact us online or by phone at 718-276-6656 to arrange a no-obligation consultation with an experienced New York family law attorney. We serve clients throughout the New York metro area, including Queens, NY; Jamaica, NY; and Brooklyn, NY.

Divorce and Business Ownership

lawyer and client sitting at table with divorce decree and wedding rings

Like a house or a car, in the event of a divorce, a business is viewed as an asset. Going through a divorce while owning a business can be a messy situation, but there are New York laws that are aimed to protect the business owner while also being fair to the spouse.

If you’re facing the situation of a divorce while also being a business owner, it’s beneficial to have a divorce lawyer who can explain your rights and protect your assets. Keep reading to learn more about what you can expect during a divorce as a business owner.

 

Marital vs. Separate Property

When a marriage is dissolved, the marital estate is divided. This includes any owned homes, bank accounts, cars, and other common assists. Business assets are distributed based on state law. In this instance, the court will determine if the business and business assets are marital property or separate property.

What determines if property is marital or separate? Separate property includes property that is:

• A gift
• Inherited
• Acquired prior to the marriage

Separate property also includes any property that is designated as separate in a prenuptial agreement or postnuptial agreement. Property that doesn’t fall into one of these four types of separate property is designated as part of the marital estate and will be divided as appropriate.

This means that any business assets acquired during the marriage will be divided and distributed. Any assets owned before the marriage are considered to be separate. Any business appreciation that occurs over the course of the marriage may be designated as marital property.

If the spouses co-own the business, the business and its assets are considered marital property. The same stands true if the business was started post marriage.

 

Community Property vs. Equitable Distribution

Divorce, as it pertains to business assets, is as clear as mud. There are other factors that come into play during divorce settlements. Business assets are also handled differently, dependent on whether the assets are in a community or equitable distribution state.

In community property states, almost all property gained during a marriage is considered to be joint property. Any property that was owned before the marriage is determined to be separate. States with community property laws allow marital assets to be split 50/50.

On the other hand, states with equitable distribution laws determine the division of the marital estate based on a “fair” division for each spouse. There are many factors that are considered to determine who gets what in an equitable distribution scenario, including the age of each spouse, the length of the marriage, and the future earning potential of each spouse.

family Law book with legal gavel

Trust Us to Protect Your Rights

Navigating a divorce on your own can be a challenge and, when business ownership is thrown into the equation, the situation becomes even more complex. Divorce laws and related property laws are extremely nuanced. To ensure that your rights are protected during the divorce, it’s beneficial to hire a lawyer that specializes in marriage and divorce cases.

Our team at Joseph A. Ledwidge PC offers some of the top divorce lawyers in the state. If you’re looking for a divorce lawyer in Brooklyn, NY to protect your rights and your assets, we’re the firm for you.

Contact us today at 718-276-6656 for a free phone consultation. We look forward to working with you and ensuring your business assets are designated in a legal and fair way.

What Is a Trustee and What Are Their Duties?

A trustee is a person or entity (such as a corporation) formally appointed to manage the assets (real estate, retirement accounts, etc.) of a trust; the trustee does this for the benefit of the beneficiaries of the trust.

It’s common in families for parents to appoint one or more of their kids to be trustees.

 

What Is a Trust?

last will and testament document with pen and glasses

In trusts and estates law, a trust is a fiduciary relationship (meaning a relationship involving trust) in which one person (the trustor) formally gives another person (the trustee) the right to hold assets on behalf of a beneficiary or beneficiaries. 

One of the main goals of creating a trust is to avoid probate, which is the process by which a deceased person’s estate is distributed to heirs and designated beneficiaries; the probate process also handles paying off creditors.

While ultra-wealthy families might come to mind when you hear the word trust, they’re not just for rich people—trusts are a useful way to manage assets for people of different wealth levels.

 

Is an Executor the Same as a Trustee?

No. An executor carries out a person’s wishes as outlined in their will. They are responsible for settling the estate, initiating court procedures, filing the deceased person’s tax returns, and distributing assets to beneficiaries, among other duties.

A trustee, on the other hand, is responsible for managing assets that will be held in an ongoing trust (in other words, assets that will not be immediately distributed), communicating with beneficiaries, and filing ongoing tax returns, among other duties.

Often the executor and the trustee are the same person. This is why many professionally drafted wills reference an “executor(s)” early on and then later mention a “trustee(s).”

 

What Are the Duties and Responsibilities of a Trustee?

fiduciary duty concept written on a paper

Trustees have several duties and powers. First and foremost, they must act in accordance with the terms of the trust and the law. Other duties and responsibilities include:

Understanding the terms of the trust, including who the beneficiaries are
Ensuring trust assets are safe
Investing the trust assets to ensure assets are productive for current and future beneficiaries
Distributing trust assets in accordance with the trust agreement
Making decisions, such as when beneficiaries are to receive payments
Filing tax returns as needed and keeping records of statements, tax returns, and other documents
Communicating regularly with beneficiaries and providing them with statements of accounts and tax reports

Trustees have a duty to act in the interests of the trust’s beneficiaries, to act with reasonable care, and to not personally profit from the trust. A trustor can appoint a family member (such as a child or sibling) or hire a professional trustee, who, legally, can charge for their services.

A trustee plays a vital role in managing a person’s estate after they die. It’s a big responsibility. An estate planning attorney can help you understand in more detail the duties of a trustee.

 

Get Expert Help with Estate Planning and Probate Administration

lawyers consulted on various lawsuits

Navigating trusts and estates law and understanding the duties and responsibilities of trustees and executors is challenging. We can help.

Joseph A. Ledwidge PC is an expert New York probate attorney representing executors, fiduciaries, heirs, beneficiaries, and other interested parties. He and his associate counsel have 32 years of combined experience and can help you avoid probate through the skilled use of trusts and other means.

Call us for a no-obligation consultation today at (718) 276-6656. We serve clients throughout the state, including Jamaica, NY, Queens, NY, and Brooklyn, NY.

What Are My Inheritance Rights After My Biological Parent Dies?

It’s a common question, and the answer is: It depends.

In general, even biological children have no legal right to inherit a deceased parent’s property. This is why it’s so important for parents to list their children as beneficiaries on accounts and create a will and trust through a reputable estate planning attorney.

If your parent died, and you’re confused about your inheritance rights, consult with a New York probate attorney. Read on to learn more.

 

Parent Died with a Valid Will

last will and testament document with pen and glasses

In general, a will is valid if it has been written by someone of legal age (usually age 18) and of sound mind (this is called “testamentary capacity”).

The will must be signed, dated, and witnessed by two “disinterested” witnesses, meaning they will not personally benefit from the will; these are just a few of the conditions that make a will valid.

A valid will should mention all children and clearly indicate what each child is entitled to. If the will is clear and all children are accounted for, each child’s share of the property will be distributed.

It’s not always so clear cut, though. Sometimes a will might be outdated—if a parent created a will before their last child was born and never updated it to include the new child, for example. In this case, many states will still recognize the new child’s rights to some of the assets. The state may assume that the parent accidentally, not intentionally, disinherited the child.

Another common situation is when a parent remarried before they died and left their entire estate to the new spouse. In this case, the stepparent may be able to completely disinherit the child or children of the deceased parent unless the will states otherwise.

Even if a child is not named in the will, it’s still possible to pass on certain assets through the designation of a beneficiary. For example, a parent can make what’s called a beneficiary deed to leave real property (real estate) to a child. A parent can also designate beneficiaries on other types of accounts, including bank accounts, certificates of deposit (CDs), retirement accounts like IRAs and 401Ks, and insurance policies and annuities.

So, if you were not named in the will but you’re the listed beneficiary on financial or insurance accounts, these assets can be transferred to you without reference to the will.

 

Parent Died Without a Will

lawyers consulted on various lawsuits

If your parent died without a will, it’s called “intestacy.” According to the New York Estates, Powers and Trusts Law (EPTL):

  • If there is a spouse and there are no children, the spouse receives 100 percent of the estate.
  • If there is a spouse and there are children (biological or adopted), the spouse receives $50,000 plus half (50 percent) of the estate balance; the children inherit everything else (if there are two children, each would receive 25 percent of the remaining balance, for example).
  • If there is no spouse but there is a child or children, they will receive an equal distribution of the estate; if there are two children, for example, each will receive 50 percent.
  • Adoptive children have the same inheritance rights as biological children.
  • Stepchildren are not entitled to receive anything from the non-biological parent’s estate (but they will inherit from their biological parents).

Again, if you’re designated as a beneficiary on accounts like IRAs and 401Ks, these assets can be transferred to you without reference to a will if one exists.

 

Get Expert Help with Estate Planning and Probate Administration

Navigating trusts and estates law and understanding your inheritance rights is complicated. We can help.

Joseph A. Ledwidge PC is an expert New York probate attorney representing executors, fiduciaries, heirs, beneficiaries, and other interested parties. He and his associate counsel have 32 years of combined experience and can help you avoid probate through the skilled use of trusts and other means.

Call us for a no-obligation consultation today at (718) 276-6656. We serve clients throughout the state, including Jamaica, NY; Queens, NY; and Brooklyn, NY.